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Currier v. Entergy Services, Inc.

United States District Court, E.D. Louisiana

November 19, 2014

ROSEANNE M. CURRIER,
v.
ENTERGY SERVICES, INC., ET AL., Section

ORDER AND REASONS

MARTIN L. C. FELDMAN, District Judge.

Before the Court are three motions for summary judgment: (1) Griffith's motion as to the one remaining claim against him; (2) Currier's cross-motion as to that same claim; and (3) Trowbridge's motion for summary judgment as to the claims against him. For the reasons that follow, Griffith's motion is GRANTED, and thus Currier's cross-motion is DENIED. Trowbridge's motion is GRANTED. All claims against Griffith and Trowbridge are hereby DISMISSED.

Background

The extensive facts of this case are detailed fully in this Court's previous Order and Reasons granting in part and denying in part Griffith's motion to dismiss under Rule 12(b)(6).[1] This litigation arises out of a corporate jet pilot's claims that her employer, in retaliation for her stance on aviation safety, grounded her without good cause, launched a sham "independent" investigation into a decades-old minor injury, and after FAA-certified physicians once again gave her a clean bill of health, contrived a mental health issue that left her grounded permanently.

On September 2, 2011, Ms. Currier sued Entergy and Trowbridge, Entergy's former corporate aviation manager, later adding Griffith, Entergy's outside investigator, as a defendant.[2] Her claims against Entergy are abuse of right, ADA claims for harassment and discrimination based on perceived disability, Title VII claims for sex discrimination and retaliation, intentional infliction of emotional distress, and civil conspiracy. She asserts that Trowbridge intentionally inflicted emotional distress on her and conspired with Entergy and Griffith to commit intentional torts.[3] Her remaining claim against Griffith is civil conspiracy.[4]

Now, Griffith moves for summary judgment as to the one remaining claim against him, that of civil conspiracy. Currier has filed a cross-motion for summary judgment as to the civil conspiracy claim and she also moves for a judgment that Griffith violated Rule 4.2 of the Rules of Professional Conduct. Trowbridge also moves for summary judgment as to the IIED and conspiracy claims against him.

I.

Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative, " summary judgment is appropriate. Id. at 249-50 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claim. Id . Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). Finally, in evaluating the summary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.

II.

A. Griffith and Civil Conspiracy

Griffith seeks dismissal of Currier's liability theory predicated on civil conspiracy. Currier alleges that Griffith conspired with Entergy to commit intentional torts, namely abuse of right and intentional infliction of emotional distress.[5]

Louisiana does not recognize a distinct cause of action for civil conspiracy, but "[h]e who conspires with another person to commit an intentional and willful act is answerable, in solido, with that person for the damage caused by that act." LA. CIV. CODE ANN. art. 2324 (2008). The actionable element of a civil conspiracy is the underlying intentional tort committed pursuant to an agreement between the wrongdoers. Able Sec. and Patrol, LLC v. State of Louisiana, 569 F.Supp.2d 617, 636 (E.D. La. 2008). In Louisiana, a conspiracy may be proven by circumstantial evidence, as "conspirators rarely formulate their plans in ways susceptible of proof by direct evidence." Silver v. Nelson, 610 F.Supp. 505, 517 (E.D. La. 1985) (quoting Thomas v. City of New Orleans, 687 F.2d 80, 83 (5th Cir. 1982)). A plaintiff must show an unlawful act and assistance or encouragement that amounts to a conspiracy to commit the underlying tort. Chrysler Credit Corp. v. Whitney Nat'l Bank, 51 F.3d 553, 557 (5th Cir. 1995). In related contexts, courts have held that employees or agents are legally incapable of conspiring with their employers or principals because in many cases the law doctrinally considers principals and their agents to be single entities incapable of conspiring with each other. See Rhyce v. Martin, 173 F.Supp.2d 521, 532-533, 536 (E.D. La. 2001) (Clement, J.) (discussing the single entity theory in the context of 42 U.S.C. § 1985, 42 U.S.C. § 1986, and Sherman Antitrust claims). The question whether or not agents and related principals may conspire with each other to create solidary liability under Louisiana Civil Code article 2324 remains unsettled. Id. at 536.

Currier bases her conspiracy claim on several allegations: (1) Griffith and Entergy's in-house counsel conducted interviews with the plaintiff without her counsel; (2) during these meetings, Griffith acted aggressively, in a manner intended to elicit an emotional response that could be used as an excuse to inquire into Currier's mental health; (3) according to Griffith's own report, Entergy's in-house counsel was closely involved in the entire internal investigation; (4) Griffith's report contained some of the same misrepresentations that appeared in the Entergy letter to the FAA asking for their assistance in investigating Currier's physical injury; (5) Griffith's report contained many intentional misrepresentations that Entergy then used to justify grounding the plaintiff; (6) Griffith and Entergy employees obtained Currier's medical records and possibly solicited opinions about her mental health by speaking with Dr. Rabito even after he sent a letter of findings clearing her for flight duty; ...


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